Comments on The Democratic Party and the War on TerrorTypePad2007-01-15T15:26:20ZUChicagoLawhttp://uchicagolaw.typepad.com/faculty/tag:typepad.com,2003:http://uchicagolaw.typepad.com/faculty/2007/01/the_democratic_/comments/atom.xml/Joan A. Conway commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d834db604953ef2007-01-22T20:33:20Z2007-04-29T15:38:39ZJoan A. ConwayDon't confuse "a day in court" with getting Procedural Due Process, or a compassionate judge without his use of his...<p>Don&#39;t confuse &quot;a day in court&quot; with getting Procedural Due Process, or a compassionate judge without his use of his discretion. That is another matter!</p>
<p>War acts are often not supported by the constitution as in the Steel Seizure Case and Truman&#39;s order to seize the steel plants to stop the labor dispute and strike, which was a 6-3 opinion.</p>Joan A. Conway commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d8350f9f2e69e22007-01-19T21:11:04Z2007-04-29T14:30:17ZJoan A. ConwayQuoting Rahm Emanuel and Bruce Reed "Big Ideas for America: "If we believe in conspiracy theories, we'd thik that only...<p>Quoting Rahm Emanuel and Bruce Reed &quot;Big Ideas for America: &quot;If we believe in conspiracy theories, we&#39;d thik that only Karl Rove could dream up the idea of a linguistics professor from Berkeley urging Democrats to &quot;practice reframing every day, on every issue.&quot; Lakoff even sounds like Rove when he says (approvingly!) that Republicans offer the &quot;strict father&quot; world view and Democrats the &quot;nurturant parent.&quot; He describes 9/11 in phallic terms: &quot;Towers are symbols of phallic power, and their collapse reinforces the idea of loss of power. Another kind of phallic imagery was more central here: the planes penetrating the towers with a plume of heat, and the Pentagon, a vaginal image from the air, penetrated by the plane as missile.&quot; With frames like that, who needs enemies?</p>Frederick Hamilton commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d834d9b69653ef2007-01-18T22:44:00Z2007-04-29T13:57:53ZFrederick HamiltonEras, Don't know enough about that to even comment on it. Details as I have about it are sketchy. Waiting...<p>Eras,<br />
Don&#39;t know enough about that to even comment on it. Details as I have about it are sketchy. Waiting for more details. Saw where the head of the Postal Service said there is no change in policy regarding mail privacy and the executive branch. Not sure what to make of any of it. Wouldn&#39;t characterize it a law breaking by the president unless I know more about the charge and circumstances, etc. Sorry.</p>Erasmussimo commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d8350ee3ec69e22007-01-18T16:11:37Z2007-04-29T13:47:41ZErasmussimoThe cases you cite all preceded the Military Commissions Act. The Military Commissions Act was just signed into law this...<p>The cases you cite all preceded the Military Commissions Act. The Military Commissions Act was just signed into law this last October; not much time has elapsed for the Administration to use it. Hence, the absence of case histories doesn&#39;t mean much at this point. </p>
<p>I remind you of this exchange:</p>
<p>FH: &quot;So what other law than FISA is the president disobeying?&quot;</p>
<p>E: &quot;How about with the most recent one, in which he declared himself free to open private mail in open defiance of the law?&quot;</p>
<p>You asked the question, I answered, and you have not responded. Are you now in agreement that the President has declared his intent to violate the law?</p>Frederick Hamilton commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d834d9743c53ef2007-01-18T14:23:40Z2007-04-29T13:44:49ZFrederick HamiltonEras, Yes, I would be comfortable being the test case. I won't of course because my activities are so mundane...<p>Eras,<br />
Yes, I would be comfortable being the test case. I won&#39;t of course because my activities are so mundane nobody in or out of government is on my trail. What U.S. citizens have been denied counsel? I have read of a handful and all were aforded counsel and their day in court. From Taliban Johnny on.</p>Erasmussimo commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d8350eb19569e22007-01-18T05:21:32Z2007-04-29T13:36:58ZErasmussimoMr. Hamilton, your status as a US citizen may not be of any value if somebody in the Executive Branch...<p>Mr. Hamilton, your status as a US citizen may not be of any value if somebody in the Executive Branch decides to toss you in jail and throw away the key. While the Military Commissions Act does in several places refer to alien illegal enemy combatants, in at least one place it makes so such restriction. Indeed, during floor debate, one Congressman pointed this out and the bill was passed nonetheless -- which provides the government with a solid basis for using the Act to deny habeus corpus to any US citizen. For a quick summary of the controversy, you might consult the Wikipedia article, which seems a fair summary. It also includes a good set of references to both sides of the controversy. I think that it&#39;s safe to say that, at this moment, your ability to successfully invoke habeus corpus is in question. Your confidence in the fairness of the American legal system is, in this case, misplaced. Perhaps when this is all sorted out in the courts, habeus corpus, at least for US citizens, will be secure. But would you be comfortable providing the test case?</p>Frederick Hamilton commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d834d93a7b53ef2007-01-18T02:07:44Z2007-04-29T13:30:18ZFrederick HamiltonEras, I said above I didn't want to quible over "declared". Yes, again I will agree with what you say...<p>Eras,<br />
I said above I didn&#39;t want to quible over &quot;declared&quot;. Yes, again I will agree with what you say Gonzales said. My point is that the wars we are in are as you also agreed legal. That is all. I don&#39;t want to rehash whether Congress &quot;declared&quot; war or simply by statute per the War Powers Act authorized war. To me a distinction of no import. War is war. Commander in chief is commander in chief. War powers are war powers. If you don&#39;t think we are in a war, tell that to the soldiers in Iraq, Afganistan, Sudan, et al.</p>
<p>Yes I will get to make my case in court because I am a U.S. citizen and the Military Commissions Act specifically address&#39;s U.S. citizens as does the constitution. You are mixing me up with non-citizen terrorists. All U.S. citizens get their day in court. </p>Erasmussimo commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d8350e8df369e22007-01-18T00:23:05Z2007-04-29T13:26:25ZErasmussimoMr. Hamilton, I object to the intellectual deceit you use. We discussed the legal status of the war weeks ago;...<p>Mr. Hamilton, I object to the intellectual deceit you use. We discussed the legal status of the war weeks ago; at that time, I presented the following quote from Attorney General Gonzalez:</p>
<p>&quot;GONZALES: There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force. I only want to clarify that, because there are implications. Obviously, when you talk about a war declaration, you&#39;re possibly talking about affecting treaties, diplomatic relations. And so there is a distinction in law and in practice. And we&#39;re not talking about a war declaration. This is an authorization only to use military force.&quot;</p>
<p>You responded by declaring that I was way out on the fringe. I asked if you had even read my post. You replied:</p>
<p>&quot;If the quote as presented by you is accurate, then I would defer to the AG and you and acknowledge my error. Technically I guess per the AG we are not &quot;at war&quot;.&quot;</p>
<p>Yet here you are once again, making the same discredited comment that you previously admitted was in error, once again declaring that I am on &quot;the fringe of a losing position&quot;. Is it your memory that is malfunctioning, your reason, or your ethics?</p>
<p>You write, &quot;And Eras, if somebody fabricates me to be a terrorist, I think I&#39;ll be able to prove to a court (I am a U.S. citizen) that I am not a terrorist.&quot; No, you won&#39;t, because you won&#39;t even get a chance to make your case in court. You&#39;ll never get close to a court, and you won&#39;t be allowed to see an attorney, either. Remember, Congress just passed a law nullifying habeus corpus. If the Feds take you away, you have no recourse. None, nada, zip. Didn&#39;t you know that?</p>Garth commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d834d9227e53ef2007-01-17T23:21:13Z2007-04-29T13:22:43ZGarthFrederick, Its funny that you mention Bush and Specter making a "smoke filled room compromise" in light of the fact...<p>Frederick,</p>
<p>Its funny that you mention Bush and Specter making a &quot;smoke filled room compromise&quot; in light of the fact that it was one Arlen Specter who, in a Republicans only session, made a change in the renewed Patriot Act allowing the AG to replace US Attorneys without Senate approval.</p>
<p>Gonzalez has gone on to purge at least 8 US Attorneys. The AG&#39;s replacement picks include a long time Rove staffer specializing in oppo research and many of the US Attorneys replaced were involved in Congressional corruption investigations, predominantly of Republicans.</p>
<p>Looks a lot like someone&#39;s circling the wagons.</p>Garth commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d834d9204a53ef2007-01-17T23:06:00Z2007-04-29T13:22:09ZGarth"if somebody fabricates me to be a terrorist, I think I'll be able to prove to a court (I am...<p>&quot;if somebody fabricates me to be a terrorist, I think I&#39;ll be able to prove to a court (I am a U.S. citizen) that I am not a terrorist.&quot;</p>
<p>That&#39;s the point Frederick. You won&#39;t.</p>LAK commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d834d91efc53ef2007-01-17T22:58:42Z2007-04-29T13:21:45ZLAKFrederick, you seem to defer to the separation of powers and Artcile I only when convenient. FISA is the law...<p>Frederick, you seem to defer to the separation of powers and Artcile I only when convenient. FISA is the law of the land too. It was amended *after* the war powers grants you are so quick to cite for Bush&#39;s authority to act unconstistutionally. It was amended to deal specifically with foreign terrorists. You can&#39;t have it both ways buddy. If you think Bush derives his authority from Congress, then you must also find that ignoring FISA is illegal and unconstitutional.</p>
<p>Do you see the confusion in your thinking? It is painfully apparent to me.</p>Frederick Hamilton commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d834d91dbc53ef2007-01-17T22:52:07Z2007-04-29T13:21:21ZFrederick HamiltonWar is war and there is no point in quibling over "declared". The votes of Congress authorizing the wars is...<p>War is war and there is no point in quibling over &quot;declared&quot;. The votes of Congress authorizing the wars is the law of the land. Even the Supremes understand that and spoke of that in Hamdan deciding what is &quot;incident to war&quot;. If you don&#39;t support the two wars fine. We are in them and it would behoove us to win them.</p>
<p>The analysis by Joan is wrong. If there is another terrorist attack you will see two things real quick. 1. Complete bipartisan support of 2. a futher redoubling of intensity of effort at intelligence and fighting the terrorists. If you civil libertarians think our present approach is contrary to maintaining civil liberties, I am afraid politicians with a new 9/11 will be more not less inclined to peek under the bedsheets. I am not saying I condone anymore than what is being done now, but I know the mind of a pol and what he/she will say and do to get re-elected.</p>
<p>LAK, I don&#39;t know the change of heart by team Bush other than to state that the NSA program is still in force and that if it takes Bush to bend to keep it that way, I suspect he will. There is much that goes on inside the Beltway that you and I are not privy to. It wouldn&#39;t suprise me if Bush and Specter have made a smoke filled room compromise. This saga continues. The phone calls are monitored. And we don&#39;t have a clue as to their innerworkings. And I am not sure we have a need to know.</p>LAK commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d834d916c353ef2007-01-17T22:30:01Z2007-04-29T13:18:48ZLAKIt seems that President Bush no longer supports your view Frederick. No more ignoring FISA apparently. I wonder why the...<p>It seems that President Bush no longer supports your view Frederick. No more ignoring FISA apparently. I wonder why the change of heart.</p>Joan A. Conway commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d834d8ee2353ef2007-01-17T20:53:07Z2007-04-29T13:03:43ZJoan A. ConwayThe bi-partisan support will evaporate if the Bush administration's strategy fails to prevent another terrorist attack in the United States....<p>The bi-partisan support will evaporate if the Bush administration&#39;s strategy fails to prevent another terrorist attack in the United States. </p>
<p>Don&#39;t fix it if its not broken are the sentiments in display by the Democrats, who want desparately to regain Congress and the Presidency in 2008. </p>
<p>They are not thinking academically or sharing the third estate&#39;s analysis of the situation, when their necks are on the line.</p>LAK commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d834d8e39053ef2007-01-17T20:11:35Z2007-04-29T13:00:08ZLAKCongress never declared war on anyone. We should revisit using the military for violent ends when there are no formal...<p>Congress never declared war on anyone. We should revisit using the military for violent ends when there are no formal declarations of war. We should not stray too far from the intent of the constitution on this one.</p>
<p>And no matter what frederick, the Constitution trumps all. The President ahs no right to ignore the 4th amendment becasue he declares we are at war. Granting limited war powers and being at war are very different things from a constitutional persepctive. Or at least still should be.</p>
<p>Either way, some shadey interpretation of the President&#39;s powers as Commander in Chief will never allow him to ignore explicit laws and constitutional Amendments, as he has done, in the most shameful and illegal manner.</p>
<p>That you continue to back his policies is dumbfounding, especially when Justice and the pentagon are backtracking and now allowing the FISA court oversight.</p>Frederick Hamilton commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d834d8de8853ef2007-01-17T19:50:47Z2007-04-29T12:58:43ZFrederick HamiltonLAK, Whatever is worked out with the president, FISA court and Congress is fine with me. Although, I am intrigued...<p>LAK,<br />
Whatever is worked out with the president, FISA court and Congress is fine with me. Although, I am intrigued by the Judge Taylor decision, 6th Circuit and the Supremes looking at it. Nice to have a definitive answer on what the commander in chief can or cannot do. </p>
<p>As to war, Congress did act. Many now wish they had not. The war is legal. I hope you are not trying to argue the president is engaged in an illegal war. You would then be with Eras on the fringe of a losing position. The votes for war times two were real. The War Powers Act is real. The wars involve real U.S. soldiers shooting and killing an enemy and getting killed themselves. If we are at war and we are, the president enjoys war powers as commander in chief. There is nothing emergency about his war powers. The votes by Congress and the law signed by the president were done with deliberation. He didn&#39;t counterattack on an emergency basis and then ask for authority. He obtained authority for the wars as required by the War Powers Act.</p>
<p>And Eras, if somebody fabricates me to be a terrorist, I think I&#39;ll be able to prove to a court (I am a U.S. citizen) that I am not a terrorist. Sorry but whether you like it or not, executive branch authorities are determining who and who are not terrorists every day without review by any court. They not only make that determination in these wars, they carry out their implication. i.e. Sudan and Zarqari. If that displeases you so be it. No U.S. laws are broken and no U.S. commander is going to jail for a crime. All we end up with are dead or captured terrorists. As hard as you try, you won&#39;t win the day on who gets to decide who the enemy is during a war.</p>
<p>And yes, Congress has the power to refuse to fund or defund a weapons system. They have done it. Refuse to fund a weapons system for a particular location, probably. Try to force the president not to use weapons already funded and available as the commander in chief to use in combat. Doubt they would have the authority or power to tell the commander in chief that as per the Rivkin Casey analysis.</p>Erasmussimo commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d834d8d5c853ef2007-01-17T19:01:51Z2007-04-29T12:56:11ZErasmussimoMr. Hamilton, thanks for responding to my comments. Unfortunately, your response is all over the map. You offer one definition...<p>Mr. Hamilton, thanks for responding to my comments. Unfortunately, your response is all over the map. You offer one definition of a terrorist as somebody captured on the battlefield in Afghanistan and Iraq. But there are no battlefields in Afghanistan or Iraq -- this is 4G warfare, and there are no clearly marked battlefields. Combat is taking place in neighborhoods, near schools, outside of police stations and shops. Does that mean that neighborhoods, schools, police stations, and shops are &quot;the battlefield&quot;? If American troops catch somebody hanging around a school, does that make him a terrorist? What if he&#39;s a teacher? What if he&#39;s neither? Both? You don&#39;t have any answers for this problem, do you?</p>
<p>You offer another means of making the determination: &quot;When positively confirmed to the intelligence communities satisfaction then decisions of killing or capturing are made.&quot; What exactly constitutes &quot;the intelligence community&quot;? One field agent? The field agent&#39;s supervisor? CIA officials? NSA officials? What happens if somebody fabricates information implicating you as a terrorist, and one night they gun you down -- do you shrug your shoulders and say, &quot;Oh well, at least some unnamed, unaccountable person was satisfied that I&#39;m a terrorist.&quot; Is this any way to run a country? </p>
<p>You suggest that &quot;If captured by either military or intelligence operatives, the terrorists might end up in Gitmo for instance and then might end up in front of an authorized military tribunal and tried.&quot; So you&#39;re saying that, so long as it is military people or intelligence operatives who do the capturing, it&#39;s just fine to throw them into Guantanamo and deny them any Constitutional rights. Again, what if it&#39;s YOU that&#39;s at the receiving end of this treatment? What if they detain you at the airport (after all, they had records of an &quot;F. Hamilton&quot; who donated some money to a charity that gave money to another group that is suspected of supporting terrorists) and ship you to Guantanamo? Now you can&#39;t offer any defense, can&#39;t have a lawyer, can&#39;t protest that you&#39;re the wrong F. Hamilton. You&#39;re stuck. Is that what you want?</p>
<p>In regard to other means of identifying terrorists, you write, &quot;Hopefully they will work.&quot; How sweet. You are hopeful that an unaccountable, secret process will be fair and even-handed. I too am hopeful, but history shatters such hopes. When people aren&#39;t accountable, they don&#39;t do things by the book. They do whatever they damn well please.</p>
<p>You would deny Mr. bin Laden his day in court. Why not? What are you afraid of? Do you think that this man would not be found guilty of his crimes? Do you believe that, if presented with the evidence, a jury would not find him guilty? You seem to think that a trial is a benefit given to the accused. If so, you do not understand the most basic concepts of law. The whole idea of a trial is to determine the truth in a way that everybody agrees is fair and aboveboard. Are you opposed to determining the truth?</p>
<p>Your notion of how Congress controls the purse strings is contradictory. On the one hand, you say that Congress can refuse to fund anything it wants, but on the other hand you say that Congress cannot tell the President how to run the war in Iraq. OK, so can Congress refuse to fund a particular weapon system? Can they refuse to fund the use of a weapon system in a particular location? Can they refuse to fund fuel for a particular military unit? You agree that Congress can control how the money is spent, but you simultaneously claim that the President can spend the money in any way he sees fit. Which is it?</p>
<p>You argue that it is fringe thinking to suggest that the President is impeachable. If that suggestion really is so far out in left field, why have so many Democratic leaders taken it seriously enough to declare that impeachment is off the table? </p>
<p>Your statement that &quot;The president and his subordinates determine who the terrorists in the world are in the war&quot; is a flat denial of our Constitution. It is a denial of the rule of law. If you were to carefully define and limit your terms to a narrow context, you might have a viable proposition. But granting the President of the United States broad powers to execute or incarcerate any person on the planet for any reason he sees fit -- well, THAT&#39;S fringe thinking!</p>
<p>You write, &quot;If the executive branch doesn&#39;t follow the law, then Congress will petition the courts to decide.&quot; No, that&#39;s not how the Constitution works. Any party with standing can bring suit before the court with jurisdiction, including Congress, it&#39;s true. But the primary form of relief for Congress when the President breaks the law is to impeach and convict the President.</p>
<p>You want to know what law the President is breaking. Where to start? How about with the most recent one, in which he declared himself free to open private mail in open defiance of the law?<br />
</p>LAK commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d834d8d43253ef2007-01-17T18:57:31Z2007-04-29T12:55:38ZLAKWASHINGTON (AP) -- The Justice Department, easing a Bush administration policy, said Wednesday it has decided to give an independent...<p>WASHINGTON (AP) -- The Justice Department, easing a Bush administration policy, said Wednesday it has decided to give an independent body authority to monitor the government&#39;s controversial domestic spying program.</p>
<p>In a letter to the leaders of the Senate Judiciary Committee, Attorney General Alberto Gonzales said this authority has been given to the Foreign Intelligence Surveillance Court and that it already has approved one request for monitoring the communications of a person believed to be linked to al-Qaida or an associated terror group.<br />
</p>LAK commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d834d8cbc453ef2007-01-17T18:32:18Z2007-04-29T12:52:32ZLAKTHE 4TH AMENDMENT TO THE UNITED STATES CONSTITUTION. (and FISA which was drafted to be as permissive as the 4th...<p>THE 4TH AMENDMENT TO THE UNITED STATES CONSTITUTION. (and FISA which was drafted to be as permissive as the 4th amendment allows)</p>
<p><br />
Has anyone noticed how this whole copout war powers nonsese is really at teh heart of all this? The High Court should look at those Viet nam era decisions and require actual declarations before Bush and Co. can start claiming emergency war powers. Especially seeing how they have been successful at manufacturing a war in Iraq out of nothing.</p>LAK commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d834d8c7f853ef2007-01-17T18:12:06Z2007-04-29T12:51:32ZLAKfrederick, one last time- i want intelligence, I want our government listening in on terrorists. However, if a suspected terrorist...<p>frederick, one last time-</p>
<p>i want intelligence, I want our government listening in on terrorists. However, if a suspected terrorist is talking witha U.S. citizen in the U.S., I simply want FISA and the constitution followed and a warrant obtained, even after the fact. It is not much to ask for. So stop with the Dems don&#39;t want the government to investigate terrorism arguments. they are disingenuous, and you are a lot better than that.</p>Frederick Hamilton commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d8350e1e1169e22007-01-17T17:40:39Z2007-04-29T12:48:29ZFrederick HamiltonEras, The terrorists are determined by all the usual methods. On the battlefield in Aghanistan and Iraq they are identified...<p>Eras,<br />
The terrorists are determined by all the usual methods. On the battlefield in Aghanistan and Iraq they are identified as combatants and possibly killed or captured. If captured, then interrogated. </p>
<p>Throughout the world many are identified I would think with intelligence. When positively confirmed to the intelligence communities satisfaction then decisions of killing or capturing are made. I would refer you to the Special Forces recently killing terrorists in Sudan and Special Forces killing Zarqawi in Iraq a few months ago.</p>
<p>If captured by either military or intelligence operatives the terrorists might end up in Gitmo for instance and then might end up in front of an authorized military tribunal and tried.</p>
<p>There are a myriad of ways to identify the terrorists. Hopefully they will work. Sadly we weren&#39;t onto our game very well prior to 9/11 and we didn&#39;t identify Atta and his cronies until after the fact. That was determined to be bad by the American public and the 9/11 Commission and our government is working their tail off to keep us on top of terrorist activity.</p>
<p>You imply that terrorists deserve a day in a court of law. That puts you on the fringe. Most Americans believe terrorists don&#39;t deserve a nanosecond in an American courtroom with the rules of evidence to be used for U.S. citizens etc to be applied. Lawyers, motions, absolute proof to a judge or jury. That is unworkable, and insane. That is my answer to your argument as to how terrorists are indentified. In Sudan, intelligence told U.S. forces where the man was who masterminded the African embassy bombings was. You want him or the accusations to be brought to a court of law. Not going to happen. Shouldn&#39;t happen. We simply found him and tried to kill him. Do you disagree with that?</p>
<p>If we could find either bin Laden or his top aide, Zawahiri then your argument says give them their day in court. I disagree. If we can locate them, send in the Special Forces and see what it looks like at the end of the battle. Unless bin Laden or Zawahiri walk out with their hands in the air, they die. Who gets to identify them. The executive branch. The president and whoever he decides to give the executive war power to. General Petraeus in the Middle East I would suspect has the executive authority to have anyone killed he thinks is a threat. He isn&#39;t a judge. He probably doesn&#39;t know his way around an American courtroom. It is war. The AUMF. </p>
<p>Your question, &quot;who really controlls it&quot;. You said you read Rivkin and Casey in yesterdays WashPo op-ed. I thought they explained it pretty well. To reiterate. If any action requires federal money to accomplish it, the Congress has control of money issues. With the vote of the Congress (assuming it survives a veto) they can stop funding anything they want. Medicare. Medicaid. Social Security. Farm Subsidies. Alternative fuel research monies. The Iraq War. The War on Terror. The president has no power to raise funds of any kind. Well Reagan did raise private money to fund the Nicaraguan freedom fighters in the 80&#39;s but that a horse of another color. Private donations were actually OK. It was the diversion of funds during Iran/Contra that pissed of the Congress. But I digress. So my good friend Congress has a heck of a lot of power. They cut off the funds for the Vietnam War. Will they do the same for the Iraq War? The War on Terror?</p>
<p>Congress has no power to tell the President how to conduct the Iraq War or the War on Terror other than defunding it. No tactical decision making. No lists of what he can or can&#39;t do.</p>
<p>So as to &quot;who really controls it?&quot; That is the beauty of the Constitution. Three branches. Each with powers. Each with powers that can&#39;t be given to any other branch. So in the end. Voila, in their own ways, they both have control. If someone had absolute control we would be living in a monarchy or dictatorship. We don&#39;t.</p>
<p>Eras, if I slandered you by saying that talk of impeachment is fringe thinking, I am sorry. But, if you indeed think Bush&#39;s actions reach the level of impeachable, I think that is indeed fringe thinking. Once again my wager stands.</p>
<p>So, I think I answered you argument. The president and his subordinates determine who the terrorists in the world are in the war. Once determined, they may kill them (Sudan, Zarqawi, et al), capture them determine with an approved (by Congress) that indeed they are terrorists and keep them in jail until the war ends or possibly a military tribunal and then if innocent then release or if guilty kill them or keep them in prison forever if they want. Your argument that an American criminal court should be the arbiter of who terrorists are doesn&#39;t pass Constitutional war powers muster. Plus the public would be real pissed off.</p>
<p>As to the last part of your post about signing statements. All presidents have used signing statements to get the executives thoughts about the legislation on the table. If the executive branch doesn&#39;t follow the law, then Congress will petition the courts to decide. That is what is happening now with the EPA (read executive) at the Supreme Court arguing their interpretation of the Clean Air Act and carbon dioxide emission regulations or lack thereof. Your statement of &quot;flat refusal&quot; to &quot;obey laws passed by Congress&quot; is hyperbole. The president took an oath to uphold the laws of this nation. He has some solid legal thinking in the Justice Dept and all the other federal departments. He is not running around disobeying laws passed by Congress. To help me with this, please site a law he is disobeying. And please don&#39;t site FISA. He is pursuing a course as a matter of war powers (yeah I know you don&#39;t believe we are in a legal war, but let&#39;s stay away from that canard) with advice from his attorney, the AG, the attorneys at NSA and that issue is in the 6th Circuit as we speak and the 6th Circuit took the unusual step to stay the Judge Taylor decision and to keep on with the NSA intercepts. So what other law than FISA is the president disobeying? </p>Erasmussimo commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d834d89ba053ef2007-01-17T15:45:14Z2007-04-29T12:36:21ZErasmussimoMr. Hamilton, the arguments you have declined to respond to are: "So now the only problem remaining is, how do...<p>Mr. Hamilton, the arguments you have declined to respond to are:</p>
<p>&quot;So now the only problem remaining is, how do we determine who&#39;s a terrorist and who&#39;s innocent?&quot;</p>
<p>Another correspondent asked this question also; since you decline to respond, I take it that you agree that only those who have been proven to be terrorists in a court of law should be subjected to the aggressive behaviors you recommend.</p>
<p>A second point you have not responded to is:</p>
<p>&quot;BTW, Mr. Hamilton, you have asserted that &quot;not wanting aggressive intelligence like intercepting international phone calls from terrorists&quot; is logically equivalent to &quot;not minding a few thousand innocent American deaths at the hands of the jihadists.&quot; I believe your assertion is patently false.&quot;</p>
<p>I take it that you now agree that your characterization of &#39;appeasers&#39; was hyperbolic.</p>
<p>Your comments about Congress&#39; powers are self-contradictory. On the one hand, you agree that Congress can control how the money is spent. On the other hand, you say that the President controls how &quot;that is done&quot;. OK, so if Congress is controlling how the money is spent and the President is controlling how that is done, who really controls it?</p>
<p>You slander me as a &#39;fringe thinker&#39; but you offer no arguments to counter my reasoning. My thoughts here are not pipe dreams, they are reasoned calculations. If Mr. Bush treats this Congress in the same dismissive manner with which he treated the previous Congress, he could well find himself impeached and convicted. His flat refusal to obey the laws passed by Congress (as expressed in his signing statements) will not intimidate this Congress. They will force the issue, and if he refuses to obey the law -- well, that pretty well constitutes &#39;high crimes and misdemeanors&#39;, doesn&#39;t it?</p>Frederick Hamilton commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d8350deb0669e22007-01-17T15:00:40Z2007-04-29T12:30:56ZFrederick HamiltonEras, Geez, I thought I responded to your arguments. What argument did I ignore? You are wrong on what Congress...<p>Eras,</p>
<p>Geez, I thought I responded to your arguments. What argument did I ignore?</p>
<p>You are wrong on what Congress can do with regard to presidential authority. They can use the power of the purse to achieve certain legislative aims, but only by controlling the money and where and how the money is spent. Executing the law and how that is done is up to the president.</p>
<p>Bush&#39;s impeachment and conviction is a pipe dream of fringe thinkers. I am suprised you would be a part of that fringe. Even Pelosi acknowledges that there is no place for impeachment in this Congress. Barbara Streisand, Warren Beatty, Michael Moore and Eras. Impeachment? Pick your wager. I&#39;ll give you 10 to 1 in any denomination you want.</p>Erasmussimo commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d834d7fc9953ef2007-01-16T23:44:37Z2007-04-29T11:44:05ZErasmussimoMr. Hamilton, since you decline to respond to my arguments, I assume that you have no plausible arguments with which...<p>Mr. Hamilton, since you decline to respond to my arguments, I assume that you have no plausible arguments with which to respond.</p>
<p>Moving along, I will note that you take the view that only US citizens enjoy Constitutional protections. This is incorrect. If you read the Constitution, you will note that at NO point does it suggest that the protections provided are restricted to US citizens. Indeed, in the Fourth Amendment, it flatly states that &quot;NO PERSON shall be deprived etc, etc&quot; &quot;Person&quot; applies to any human being, not just US citizens. On this point the Constitution is clear. In two centuries of jurisprudence, the courts have made a few exceptions, almost all of them related to warmaking, but in general they have upheld the principle that Constitutional protections apply to everybody. So be careful with those sweeping statements about Constitutional protections -- the way you word them, they&#39;re wrong.</p>
<p>You reference Rivkin and Casey as authorities, which they are, but they are by no means the final authorities. Indeed, their claims strike me as an extension of the Unitary Executive theory, which is pretty radical in its assignment of near-dictatorial powers to the Presidency.</p>
<p>They suggest that Congress cannot intrude into the functioning of the Executive, but in fact Congress can make whatever specifications it desires about the execution of policy. Remember, the President doesn&#39;t make policy, he executes it. Congress makes the law, not the President.</p>
<p>You smugly claim that &quot;If anything the FISA act will be amended to allow for what NSA is doing.&quot; You should read the papers. There are several Congressional investigations in preparation that will closely examine the Administration&#39;s actions in violation of FISA; this could become the basis for an impeachment of Mr. Bush, should he refuse to cooperate with the investigation, or refuse to obey Congressional instructions to remain within the confines of FISA. (There are actually a number of fronts on which Mr. Bush is heading towards a confrontation with Congress that could result in his impeachment and conviction.)</p>Phil commented on 'The Democratic Party and the War on Terror'tag:typepad.com,2003:6a00d8341c031153ef00d8350d54e069e22007-01-16T22:35:07Z2007-04-29T11:43:36ZPhilhttp://www.throwingthings.blogspot.comRoach- Can you really mean that past atrocities make present or prospective abuses okay? Your point, such as it is,...<p>Roach- </p>
<p>Can you really mean that past atrocities make present or prospective abuses okay? Your point, such as it is, about the Seminole and plains indians seems to come to just that. Creepy.</p>
<p>From there you descend into rhetoric that is just a hair shy of proclaiming that &quot;freedom is not truly lost if it is sacrificed for the health of the fatherland&quot;, to wit: &quot;So long as the restrictions are based on helping a coherent community, the American people and are aimed at preserving as much as possible our traditional way of life, then such costs will be reasonable, or at least rational.&quot;</p>
<p>Your (uspecified) definition of &quot;coherent community&quot; to one side, and your strained leap toward the safe harbor reason and rationality to the other, the meaty center of your remark sounds to me like near-hysterical crypto-fascist nonsense.</p>
<p>The fact that you feel &quot;dangerously mixed up&quot; (paraphrasing) in a &quot;multi-cultural society&quot;, only deepens my suspicion. You seem eager to conflate the &quot;War On Terror&quot; with a war against Islam or &quot;hypenated americans&quot;, extreme positions that even the hardest of the hard-line in the current administration would not take publicly.</p>
<p>In short, I don&#39;t think the calculus you&#39;re suggesting for evaluation the recent curtailments of civil rights is appropriate. Quite the contrary: it&#39;s perfectly shocking.</p>
<p>PT</p>